January 22, 2013

The Constitution does not explicitly mention any right of privacy. In a line of decisions, however... the Court has recognized that a right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution. In varying contexts, the Court or individual Justices have, indeed, found at least the roots of that right in the First Amendment.... or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.... These decisions make it clear that only personal rights that can be deemed "fundamental" or "implicit in the concept of ordered liberty"... are included in this guarantee of personal privacy....

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

Was the state's interest in protecting the unborn child sufficient to permit some regulation? The answer was yes, but not before the "viability" of the unborn. As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused "to endorse any theory that life, as we recognize it, begins before live birth," since "those trained in... medicine, philosophy, and
theology are unable to arrive at any consensus."

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her, no matter how firmly the majority of the people believe they have solved the mystery and they know that what she is doing is murdering a child.

171 comments:

"As to whether the killing of that pre-viable entity ought to be seen as the killing of a human being, justifying rescue by the state, the Court refused 'to endorse any theory that life, as we recognize it, begins before live birth,' since 'those trained in... medicine, philosophy, and theology are unable to arrive at any consensus.'"

So, in the absence of a "consensus" that a pre-viable "entity" is a human life, the Supreme Court treats the "entity" as not a human life and prohibits State governments from protecting the "entity".

Is it no wonder that this vacuous decision has not "settled" the abortion issue, but inflamed it?

The language is quite interesting. A right to privacy not specifically mentioned in the Constitution serves to buttress another right apparently conjured up out of thin air.

I don't really have a dog in this fight because I wanted to have kids, had them and I'm expecting a grandchild. My daughters want children, too.

Here's my question... What was the pre Roe v. Wade reality? Were states really aggressively pursuing this invasion of privacy that the Court refers to? I've got my doubts about that, but maybe a more informed commenter knows something about this history.

The language following the assertion of a hitherto unknown right to privacy is interesting too. The justification for asserting this right is the convenience of women. Why is the convenience of women of such overwhelming importance?

Yet it does mention that "the right of the people to keep and bear arms shall not be infringed"

Stragely said bearing of arms is some sort of collective right written with 9 other Amendments which are expressly guard individual liberties.

And of course this non-existent right to "privacy" really only exists in the left's mind as an abortion right. You have no right to "privacy" when it comes to your income, health care, owning a gun, smoking, etc. as far as the left is concerned.

"So, in the absence of a "consensus" that a pre-viable "entity" is a human life, the Supreme Court treats the "entity" as not a human life and prohibits State governments from protecting the "entity"."

For legal purposes, for the question of what the courts should do about the conflict between the individual with a constitutional right and the state which wants to intrude into that area of individual right, the basis for the state's intrusion was not established by the state's belief that it is protecting a human being. The Court refused to resolve the question of what the unborn entity is -- pre-viability -- and the state's preference lost out to the woman's liberty. Someone had to decide what is going on in early pregnancy and how important this situation is, and the Court's decision is that it is the woman's decision. That is why it's referred to as the "right to choose."

This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter.

I suffer psychological harm from being a best of burden by being compelled to support welfare deadbeats. Using the courts logic I have privacy rights, the right to not disclose my income and thus be compelled to support parasites.

I rarely express the frustrations I have with my children if they're having a bad day, instead if a comment of empathy that I would need, I may get a sarcastic response 'that I choose to have them'. Geesh thanks...

I can't relate to the culture, that the law is responsible for upholding.

The burden is no longer on us to help the pregnant mother and the father, rather the burden is on the unborn child to be determined if it is worthy of being helped. The woman is left with the task if aborting her child, not the social support that has abandoned her.

Planned or a surprise, every child is a benefit to society, even when they're obnoxious. My goal is that they don't become obnoxious adults, and that's hard. So as a parent, please some kind words of encouragement and please don't 'tsk 'tsk' at me for being so irresponsible for accepting my children.

I'm pro-life, but I'm all for social programs that help pregnant women, as long as it doesn't end up replacing natural social supports of father, family, and community.

For legal purposes, for the question of what the courts should do about the conflict between the individual with a constitutional right and the state which wants to intrude into that area of individual right, the basis for the state's intrusion was not established by the state's belief that it is protecting a human being. The Court refused to resolve the question of what the unborn entity is -- pre-viability -- and the state's preference lost out to the woman's liberty. Someone had to decide what is going on in early pregnancy and how important this situation is, and the Court's decision is that it is the woman's decision. That is why it's referred to as the "right to choose."

Scott Peterson is on death row for killing his wife and unborn child. Killing the kid is the aggravating offense that put him on death row.

Ann also makes a compelling case as to why no man should be obligated to pay child support unless he agreed to do so.

I rarely express the frustrations I have with my children if they're having a bad day, instead if a comment of empathy that I would need, I may get a sarcastic response 'that I choose to have them'.

What a ghastly reply. Are these 'friends' of yours that are saying that?

If some complete stranger came up to me and voiced frustration in an exasperated voice about her kids, they'd get a wan smile from me, and a I hope things get better. But if a friend said the same thing, they'd definitely get a sympathetic ear. Every parent has been there.

Women are insane. To take a child's life is insanity. However women will injure or kill themselves in the process of trying to abort a child, so for the sake of women's health we need to keep abortion safe and legal.

Or, we could treat abortion as a mental health issue and field task forces to understand why women want to abort their children. You know - sic the CDC on the problem. We can then make women go thru counseling for wanting to have abortions. Yeah - that'll work...

They defined the baby as property. They defined her as property throughout the pregnancy, including after she is viable. Legally she does not exist. In fact, Blackmun's opinion has so deconstructed the word "person," that maybe newborns aren't people, either. In Carhart, for example, not a single Justice argued that a baby outside the birth canal is a person entitled to the equal protection of the laws.

Also in Carhart, the Supreme Court acknowledged that our country is utterly divided over abortion. Which of course means the Supreme Court has not settled the issue at all. It's profoundly unsettled.

Fast and Furious for Mexican drug gangs, however. The Second Amendment only really applies to roving bands of armed thugs invading the country for purposes of violating our laws and killing our citizens. You see that clearly now, yes? Or do we need to send you to a re-education camp?

Professor Ann says: "For legal purposes, for the question of what the courts should do about the conflict between the individual with a constitutional right and the state which wants to intrude into that area of individual right, the basis for the state's intrusion was not established by the state's belief that it is protecting a human being."

You cite Blackmun's observation of a lack of consensus. When the court conjures up the constititional right out of whole cloth, penumbras, and emanations, then you can expect push back. You presume that people accept the premise that this is a constitutional right. Many do not, and therein lies the rub. There's your lack of consensus.

SCOTUS appear to have made an error which shifted their subsequent reasoning viz. that pregnancy perforce equals motherhood and all the difficulties that entails.

A pregnancy is terminated at birth. The woman at that point has the choice of motherhood or adoption.

One of the few genuine roles of government is to protect the weak against the predations of the strong, especially when violent. No individual is weaker than when in the womb. No act is more violent than killing that individual.

Roe is also deeply flawed on a number of other levels, not least of which are its intrusion into the domain of states and its assumption that the unborn child is merely the *property* of the woman carrying it. We addressed the issue of people as property 150 years ago, or at least I thought we did.

This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter.

A proper construing of "viabilty" will determine when an individual within an individual becomes operative.

You missed the best trick. The court now gets to define who is and isn't an individual deserving of protection. They can cite the confused arguments of unnamed medical professionals, ethicists and philosophers. You can be defined right out of YOUR constitutional rights as well, now.

Much as I don't like the idea of abortion, it seems to me that the key is 'viability'.My wife needed to have a Cesearean Section in order for her and our son to survive.

If C-sections are allowed when the woman is near full-term, then they should be allowed during the first tri-mester as well. [Yes I know an abortion is a completely different procedures; that misses the point.]

The 'right' to life only has meaning when the person has the ability to live. You don't have the right to make someone else sacrifice part of their life for yours. You can't force your twin to give up a kidney if yours are no longer functioning, so that you can continue to live. It has to be your twin's choice to do that.

If abortion is so popular Garage, it's weird how nobody wants to admit to having one. And it's also weird how liberals are terrified of having this issue resolved through the democratic process. Almost like you're scared of democracy or something.

"This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter."

This is obvious, but only makes sence if one ignores the central issue which is the presence of the individual most at risk of their right being taken - all their rights in toto one fell swoop.

Like the Germans discovered you can do some nasty shit if you just keep it a little hidden and out of sight. Keep it all language and legality, and avoid any visual clues to whats taking place. That's the secret to success with such a thing.

wow, that poll is unbelievable dishonest. Apparently Roe only allows abortion in the first 3 months of the pregnancy. Unbelievable. 6 million abortions in the 2nd and 3rd trimester, and they never happened.

Oh and it is hard to take a President who as a state senator was against his state's version of the Born Alive Infant Protection Act and who referred to the possibility of his daughter's getting pregnant as being Punished, seriously when he is pretending to care 20 kids got murdered in a school.

--Pray you never find yourself in a critical care ICU because at that point you ain't viable. No controversy there.--

Ohhh, wait until that commenter hits 70.

What a shock that person is in for.

This was a recent comment at The Belmont Club:

I just went to a gathering that was addressed by former NY Lt. Gov. Betsy McCaughey, author of “Beating Obamacare,” a book detailing the coming Brave New World our Insect Overlords [in Homer Simpson-speak] have planned for us.It reminds me of a cut-rate version of the 1976 movie Logan’s Run. A grim business (check it out: a cautionary tale for our times).McCaughey has read, and studied, the Whole Thing. Brought the HUGE binder to the event. She warned us that:–buying major medical/”catastrophic” insurance policies will no longer be Allowed; nor will private policies: all will become The State Policy. NO exceptions, except the rich who can buy medical care a la carte–the State will decide what kind of medical care we are allowed, even within their framework some will be denied “covered” services if they see fit–old people on Medicare will be thrown to the dogs, because the new laws have harsh punishments for hospitals and doctors who spend money on old folks (CAPITATION is baaaack, folks! but its old foes are all for it, now)–the State will have a Little List of prying questions that have naught to do with health, for your doctor to ask you; the answers they will be forced to relay back to the Insect Overlords–all private health insurance policies will be forced to cover a full Rolls-Royce menu of services, including stuff like acupuncture, which you will have to pay for whether you like it or not–there is a BS distinction between “Bronze, Silver, Gold, and Platinum!” policies, but the only difference will be the copays you pay: it’s the same menu on eachAnd there’s a lot more, all bad. An advisory board of these Insects will be deciding whether you, at age 70, “are worth spending” the money for a hip replacement/angioplasty/cataracts/kidney replacement/etc. Remember the National Socialists’ policies of killing off “mental defectives” and people with birth defects? their benefit to The State was deemed Insufficient; they were a Burden; they Had to Be Killed.These monsters, instead, will just let you die. Miserably. And, if that despicable Napoleon Bloomberg has his way, In Great Pain, because sh*t, you might give extra meds to some drug addict.

hey ST (and anybody else) shoot me an e-mail at saintcroix1@gmail.com and I will send you a pdf tonight. Thanks!

I'm calling it The Baby/Abortion Paradox. It was inspired by an Althouse thread, where she talks about the woman's right to decide the baby's reality. That struck me as an argument that's at odds with reality. We might not know what the baby's reality is, but there is a reality, and it's independent of mom's will.

The 'right' to life only has meaning when the person has the ability to live. You don't have the right to make someone else sacrifice part of their life for yours. You can't force your twin to give up a kidney if yours are no longer functioning, so that you can continue to live. It has to be your twin's choice to do that.

If it only it was true. Then I wouldn't be compelled as a taxpayer to pay other people's child support. Are you a survivalist? Because if you are not you won't survive a major EMP attack on the country. In short without the umbilical chord of the nations infrastructure you aren't viable.

I see a lot of good arguments against abortion and Roe here, but pretty much nothing pro. Is there anything beyond just the "life gets complicated after you get pregnant, and that's kind of a bummer" argument, or the pretending that it's just a legal question.

Japan's new government is barely a month old, and already one of its most senior members has insulted tens of millions of voters by suggesting that the elderly are an unnecessary drain on the country's finances.

Taro Aso, the finance minister, said on Monday that the elderly should be allowed to "hurry up and die" to relieve pressure on the state to pay for their medical care.

"Heaven forbid if you are forced to live on when you want to die. I would wake up feeling increasingly bad knowing that [treatment] was all being paid for by the government," he said during a meeting of the national council on social security reforms. "The problem won't be solved unless you let them hurry up and die."

Aso's comments are likely to cause offence in Japan, where almost a quarter of the 128 million population is aged over 60. The proportion is forecast to rise to 40% over the next 50 years....

I think we have to face the fact that progress will eventually mean that if the right people don't really want you around, then you won't be. So be fun, or pay for a bunch of other peoples stuff, or have an interesting blog, or some credentials that make you sound useful. Get one of those things going or you're next.

Ann Althouse wrote, "This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter."

But there are two questions here:1. Is abortion is a natural right, and2. Is it a right protected by the U.S. Constitution?

One can recognize (1) yet disagree with (2).

Does the U.S> Supreme Court have the authority to protect natural rights even if these are not explicit in the U.S. Constitution (and likely would not have been recognized when the Constitution and its amendments were ratified)?

Are we to declare that in addition to a written constitution the United States also has an unwritted constitution (perhaps visible only to certain annointed)?

Does (or should) the Supreme Court have the authority to recognize unwritten, natural law?

I would argue that it does not and should not, for permitting anyone- even Supreme Court justices- to create precedent out of thin air (that is, "natural law" that may be perceived only by the justices)- is the antithesis of a govenment of laws as opposed to a government of men.

A Supreme Court that rules on the basis of an invisible, unwritten natural law is little different from a preisthood attempting to impose laws given by a god that only the priesthood can see.

This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter.

Well stated.

But what about the fathers? They have responsibility for the unborn child but no rights regarding its survival to be born. Could this have something to do with the decrease of fathers taking responsibility after birth? Almost certainly, in my opinion, though not measurably with precision.

If the mother can blow off the child before birth, why not the father after?

I see a lot of good arguments against abortion and Roe here, but pretty much nothing pro.

I think that even if you're pro choice, you have to be a little red in the face after reading Blackmun's opinion above. If that isn't proof that smart people can rationalize any outcome they want, I don't know what is.

Icepick, my You're a fool comment is a little harsh, and I'm sorry I was so snarky, but the reality is that Government and Courts are made up of people and people are inconsistent.

Which is why we try to codify the most important things, to cut back on that inconsistency. Which does no damned good at all when those who are the final judges on the matter just make things up as they will.

Because if you are not you won't survive a major EMP attack on the country. In short without the umbilical chord of the nations infrastructure you aren't viable.

If you're on welfare you aren't viable. Therefore the government should round up all the unviable welfare people and abort them. Since they aren't viable they've clearly got no rights under the constitution.

Speaking of "viability," Justice Blackmun cites Plato and Aristotle for the viability doctrine. That's kind of weird, right? The ancient Greeks did not have neonatal intensive care units. So what did they mean when they talked about viability?

They were defending the ancient Greek practice of abandoning babies to die.

With the viability doctrine, the Supreme Court jettisons the life or death standard of Judeo-Christianity for the pagan standard of survivability, or weakness. Viability measures whether you can survive on your own. A baby is, by definition, non-viable. She can't feed herself.

Someone asked what the enforcement practice of anti-abortion laws was pre-Roe. Of course, because these were state laws, they differed from state to state both as to substantive provisions and enforcement policy. I have some familiarity with the situation in Conn. and the District of Columbia. Both permitted abortion to protect the life or health of the mother, so the woman needed to get three doctors to certify that the abortion was medically necessary. At least in Conn. (I don't remember whether this was so in DC) "health" could include mental health, and in that case one of the doctors had to be a psychiatrist.

If you knew who to ask, finding three doctors to say that an abortion was necessary to protect the woman's health wasn't hard. The overall result was that the daughters of the well-to-do and well-connected could get abortions pretty readily.

However, there were also a lot of institutions ("homes for unwed mothers") to which a pregnant woman could go, be cared for, give birth, and put the child up for adoption. I don't suppose there's much call for such institutions these days.

PS Our population is shrinking, they say. One wonders what it might look like had those 55 million lived?

Well, the elites wouldn't have the argument that there aren't enough people to do that work, so we need to import all the Mexicans and Guatemalans to do the grunt work. But not that by aborting that many of people whose families were already here, and by importing tens of millions of poor peasants from the third world, the elites are getting to elect a new populace. Such is the design and it's working to a tee.

You should roe, provided the ice has broken up sufficiently for the boat to float. With wade, you quickly run the risk of hypothermia, plus you have no support should the dog flail as you grab him. What? This isn't the debate on how best to rescue Zeus from broken ice?

And don't bother mentioning that the UE rates are high, we still need to import tens of millions of poor third world peasants. It's necessary to keep wages suppressed. This makes all the elites happy. The two main groups (Republicans & Democrats) want poor people for different reasons (economic versus political) but it what both want.

Margaret Sanger Pivot of Civilization:"In such a reckless and thoughtless differentiation between the "bad" and the "good" feeble-minded, we find new evidence of the conventional middle-class bias that also finds expression among some of the eugenists. We do not object to feeble-mindedness simply because it leads to immorality and criminality; nor can we approve of it when it expresses itself in docility, submissiveness and obedience. We object because both are burdens and dangers to the intelligence of the community. As a matter of fact, there is sufficient evidence to lead us to believe that the so-called "borderline cases" are a greater menace than the out-and-out "defective delinquents" who can be supervised, controlled and prevented from procreating their kind. The advent of the Binet-Simon and similar psychological tests indicates that the mental defective who is glib and plausible, bright looking and attractive, but with a mental vision of seven, eight or nine years, may not merely lower the whole level of intelligence in a school or in a society, but may be encouraged by church and state to increase and multiply until he dominates and gives the prevailing "color"—culturally speaking—to an entire community."

. . .

"Now, as the findings of Tredgold and Karl Pearson and the British Eugenists so conclusively show, and as the infant mortality reports so thoroughly substantiate, a high rate of fecundity is always associated with the direst poverty, irresponsibility, mental defect, feeble-mindedness, and other transmissible taints. The effect of maternity endowments and maternity centers supported by private philanthropy would have, perhaps already have had, exactly the most dysgenic tendency."

Well, the elites wouldn't have the argument that there aren't enough people to do the work, so we need to import all the Mexicans and Guatemalans to do the grunt work. But note that by aborting that many of people whose families were already here, and by importing tens of millions of poor peasants from the third world, the elites are getting to elect a new populace. Such is the design and it's working to a tee.

gerry, that was progressives from some time ago. Progressives from NOW just want any native born Americans aborted, other than their own immediate progeny (aka the new lords of us all) of course. That way there is more cause to import ignorant third world peasants from such wonderful places as Haiti and Mexico to come here and vote for the Democrats. They're electing a new populace to ensure their own grip on power.

Icepick said...Because if you are not you won't survive a major EMP attack on the country. In short without the umbilical chord of the nations infrastructure you aren't viable.

If you're on welfare you aren't viable. Therefore the government should round up all the unviable welfare people and abort them. Since they aren't viable they've clearly got no rights under the constitution.

1/22/13, 9:45 AM

They do have rights under the constitution, the right to support themselves. The real question is do they have rights to other people's money such as yours?

Funny how everyone clamors about rights but never the other side of the coin: responsibilities.

Peter said...Ann Althouse wrote, "This is how rights function: The question is whether the majority may prevail over the individual or whether the individual controls the matter."

But there are two questions here:1. Is abortion is a natural right, and2. Is it a right protected by the U.S. Constitution?

One can recognize (1) yet disagree with (2).

Does the U.S> Supreme Court have the authority to protect natural rights even if these are not explicit in the U.S. Constitution (and likely would not have been recognized when the Constitution and its amendments were ratified)?

If you don't have a natural right to be born everything else is pretty much irrelevant.

Don't forget about Doe v. Bolton -- which defined "a woman's health" to mean, well, pretty much just about any reason at all -- "emotional, physical, familial, age, etc." I remember reading that in Michigan they tried to prosecute a case where a women openly admitted to being motivated for her 3rd-trimester abortion by wanting to get revenge on the boyfriend who just broke up with her, but the charges were ultimately dropped.

"Viability is now about 23 weeks gestation. Has the court updated its opinion accordingly?"

What updating seems needed to you, considering that the Court always referred to viability as the important line? It is where it is.

To me, drawing the line at viability makes no sense at all, except with respect to the problem of a botched abortion where the baby survives and now needs all sorts of heroic care (or tempts the doctor to commit murder).

One of the biggest contradictions that I can see for the Pro-Abortion crowd on viability:

They refer to viability of a fetus only after it is severed from the mother by artificial means. Never is the viability of a fetus that is not acted upon by external factors taken into account.

A fetus that is left alone, and which isn't miscarried due to natural factors (IE, not aborted deliberately), is viable all the way up to birth. It is only after birth that viability becomes an issue. Without direct care by adults all babies that have been born will die. It is non-viable only after birth, only to become viable at the point where it can feed itself.

The real question in the abortion debate is when do we think it is okay to kill children.

Pro-Abortionists think it is fine pretty much anytime that the mother doesn't want a child, right up to birth. The logical extension of their justification of viability should be that children can be killed with no repercusions up until they can take care of themselves. After all, the mother is just exercising her choice to not have a child.

No dummy, you didn't "say" it was popular. You merely linked to a junk poll saying 70% of people don't want Roe over turned and spend 3 more posts trying to dispute Gallup's poll findings on the matter.

To top your silliness off, you then responded to a point I never made.

Pre-viability, the decision whether to continue with a pregnancy would rest with the woman within whose body the mysterious process was taking place, and it would not be the role of the state to make that decision for her

But, apparently, the state is just fine and dandy in making the decision for the man, based upon merely the whims of the woman, to take a quarter of his earnings for a third of his life. No problems there at all.

I am always amused that liberals who use children as their war banner and rallying cry everytime they want to restrict our freedoms, sure are hell bent on preventing as many as possible from being born.

Compare it to marijuana. Would you say legalization is a nonissue because people who are willing to take the risk are able to produce it, sell it, and acquire it?

Maybe. Maybe not.

I'm not a hardcore admirer of legalism as the approach to everything that you are, Althouse.

So, I often think that traditional moral constraints are good things, even if some of that awful "hypocrisy" happens.

In this case, I haven't formed an opinion. But, it could be that decisive public condemnation of abortion is a good thing and that poorly enforced laws against it, along with hypocritical limited access to it, might be a better solution.

"But, apparently, the state is just fine and dandy in making the decision for the man, based upon merely the whims of the woman, to take a quarter of his earnings for a third of his life. No problems there at all."

Do you really want the idea that a man can coerce a woman to have an abortion?

Wait... in many cases that happens.

I wish the pro-choice side to please acknowledge this problem.

Pro-lifers have been recently making efforts to work on the other side, just as pregnant women feel trapped into the option of abortion. Many abortion workers feel trapped in their jobs. It's like moving from being a stripper, it isn't exactly something you highlight on your resume or let others know.

"To me, drawing the line at viability makes no sense at all, except with respect to the problem of a botched abortion where the baby survives and now needs all sorts of heroic care (or tempts the doctor to commit murder)."

This is sort of the whole point for partial birth abortion. It is a technique that assures the viable baby is dead before removing it.

"The 'right' to life only has meaning when the person has the ability to live."

The fetus actually requires less intervention than a newborn. Left alone, it will most likely live. Left alone the newborn will die.

"You don't have the right to make someone else sacrifice part of their life for yours."

This is true. OTOH, unless a woman is raped or abducted by aliens who impregnate her, or demons trying to create the spawn of satan... the "someone else" didn't *ask* for the sacrifice, it didn't sneak up on the woman and leap up her vagina.

Google or Wiki Sherri Finkbine. I believe that's where the SCOTUS got the impetus from. I remember that it was a huge story for months. Screaming headlines. Lots of emotion. Thalidomide was in the headlines for years.

But let's face it. What Ann is avoiding is exposing the SCOTUS for the big government entity it is. They would rather give a weak tea like emenations of privacy than go straight to the 10th amendment and find the Feds do not have the right to regulate abortion. No lawyer wants to open that Pandora's box.

Yes, and this is something I blog about as often as I see the problem. Equal justice under the law is important.

Great. I agree that you usually do. Now when can we expect the analytic post about the non-prosecution in the Fast & Furious operation. Federal laws were broken by both federal officers and by civilian businessmen purportedly acting upon orders from federal officers. These are the officers charged with managing the gun control laws we have now. And they broke them themselves.

It is fairly certain that investigating federal officers have been lied to by other officers....that is also against the law. You, me and Martha Stewart can go to jail for that. Will anyone else?

Now back to the day's program about Roe v Wade which ruled on first trimester abortion, IIRC, but has now evolved to cover jamming sharp scissors in the head of a viable child just pre-birth or post birth....post delivery abortion, upon newborns determined not yet "aware", is now discussed as remedy for the "burden" of motherhood.

I used to think George Orwell and Aldous Huxley were kidding. Just shows how ignorant and wrong I can be.

Yes, and this is something I blog about as often as I see the problem. Equal justice under the law is important. So don't have laws that you aren't willing to see enforced against everyone.

Obviously the courts beg to differ otherwise there would be no qualified immunity. Or discretionary gun permits for the wealthy or connected in certain jurisdictions just like those who get permit variances in certain jurisdictions. The list is rather extensive. Speaking of equal justice under the law since only the woman gets to decide to stay pregnant why does the father have to pay child support if his choice wasn't to have the kid. Or worse have to pay child support even if it isn't his kid as has happened to many formerly married men? Funny system of equal justice that a kid has no right to be born but once born has superior rights to the father's income.

Ann says: "To me, drawing the line at viability makes no sense at all . . . ."

But we have to draw a line somewhere, don't we? Otherwise, the right to abortion would morph into a right to infanticide or child murder or just regular old murder. Drawing the line at "birth" is imperfect, to, of course, as some late-term abortions end up with live babies to dispose of.

Really, human life is a continuous process from conception to death. Where you draw the line is a serious question.

Back in olden times, "quickening" was sometimes a key point in fetal development for deciding whether abortion could be performed, probably because up until then the science of the day was less certain about whether there was or wasn't a live fetus.

But nowadays we can observe fetal development from almost the beginning, and we can see what looks a lot like a human baby very early on.

I'm not sure when in a continuing process a small collection of cells becomes a person, but unlike the Supreme Court I believe my ignorance argues against killing what might be a human being.

Pre-viability is now morphed in to "pre-awareness", regardless of viability. This is the "new" debate.

The next morph step will be "social value" ... good luck with that one. It's going to apply to newborns and to those over a target age...say 70 years old, which coincidently is the new discussed age for retirement eligibility. A "shocker" right? You become eligible for Social Security and Medicare benefits in the same year your social value is determined nil ... croak you bastards (I am 70+ as I speak), we need both your space and your money from 50+ years of payroll taxes, once called "insurance contributions."

"Affluent, educated people knew how to get their abortions and they always will."

I had read not long ago about how Tide detergent is used as trade-goods in certain types of neighborhoods. The obvious question came up and was answered in the article:

How do you shoplift such a bulky item without being caught? Answer: The min wage grocery store workers are not going to try and stop a young tough as he walks out of the store with bottles of Tide.

I am not willing to prove this; but my guess is that I would be prevented from taking free Tide. Should theft of Tide be legal since it is not fair for some people to effortlessly steal it while I cannot?

Roe is odd in many ways. It took an idea that ought to resonate with conservatives -- the constitution embodies a right of privacy that limits the power of government -- and instead made it anathema. Indeed, it created a a breach between libertarians and social value conservatives that has never been fully mended. So much of the Warren Court's legacy was in the same vein -- courts coming up with non-textual or extra-textual lmiits on governmental power.

A big part of the problem was that those cases were finding limits on governmental powers in the wrong places. Roe's right of privacy was too obviously just an imposition of a particular set of values. It would have been better to reconsider the Slaughterhouse Cases, for example. The Warren Court's proceduralism in criminal law in particular was an unfortunate turn. It would have been better to strengthen the jury (both grand and petit) as a bulwark against overreaching gov'tal power.

The road not taken always beckons. Might have turned out not so great, too, but that doesn't lessen its attraction.

Funny system of equal justice that a kid has no right to be born but once born has superior rights to the father's income.

...which, of course, said kid has no right to receive directly, thus dependent upon the mother who decided to have and keep him/her. Mom's the proxy-regent for the kid's funding entitlement. How much benefit actually accrues to the kid?

Funny system of equal justice that a kid has no right to be born but once born has superior rights to the father's income.

...which, of course, said kid has no right to receive directly, thus dependent upon the mother who decided to have and keep him/her. Mom's the proxy-regent for the kid's funding entitlement. How much benefit actually accrues to the kid?

Convenient that, eh?

1/22/13, 11:49 AM

Tru dat. If politicians were to ever get serious about ameliorating the underlying social dysfunction that is currently bankrupting the country child-support would become optional for the father. That would first shock woman then focus their minds much more clearly on whom they choose to get and stay pregnant by. Throw in paternity testing as a condition of support from children arising from marriage that would focus their minds even more.

The point being when the sane and abled bodied are forced to be self-responsible or suffer consequences they tend to be responsible. Will this work 100% of the time? No. Nothing ever will but the dysfunction tracks the rise of the welfare state.

Too bad he didn't die ten years earlier. Just think what an alternative history without the Gulf of Tonkin incident and the welfare state might have been like.

Could one conceive of a 1960 elected President Nixon botching a Bay of Pigs which resulted in the Cuban Missile crises which almost got the country nuked? Or getting in to Vietnam half assed if at all? The Civil Rights Act I could see happening under Nixon if only for cynical political gain. The welfare state though would have stayed with social security and some limited form of medicare. Nixon wasn't that much of a conservative on social issues.

Thanks Ann, I just ordered the book you mentioned, "When Abortion Was a Crime" through your Amazon portal. Perhaps it should be required reading for a high school sex ed course along with the abstinence recommendation and various other means of birth control.

The Constitution does not stand independent of The Declaration of Independence. If the justices required guidance to direct their decision, they should have consulted our national charter.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

The Fourteenth Amendment only permits termination of a human life with cause and after due process. It recognizes that a life may terminated prematurely in cases of extreme irreconcilable differences, for example following the commission of murder. Not only is that criteria not met in the case of elective abortion, but a human life from conception to birth is presumed incapable of committing involuntary exploitation and is therefore innocent. Satisfying a mother's desire to preserve wealth and welfare does not justify premeditated murder.

The normalization of elective abortion is one of the principal causes of progressive corruption and dysfunction in our society. It has done even more than the "original compromise" (i.e. slavery) to devalue human life throughout its development, from conception to death.

Do you really want the idea that a man can coerce a woman to have an abortion?

No. If the right to abort is based on a right of privacy owned by the woman, the man should have the same right to privacy. Privacy from having his life upended suddenly.

If the woman can end an unwanted pregnancy, the man should have the same choice as much as the law will allow, biology aside. In this, I'm referring, of course, to the financial burden.

If a woman chooses to abort, she can do so with or without consent of the man. There's no workable system that I can see in which a man can force a woman to carry to term. On the other hand, if the woman chooses to carry to term and the man does NOT want to be a father, the state should recognize his right to privacy by placing 100% of the burden of raising that child on the head of the sole person in the world that can make the choice to abort or keep.

If the mother or father forsakes responsibility for the care of their child, then she or he should not be eligible for entitlements or welfare from the state. After demonstrating willful disregard for the life and welfare of their voluntarily conceived child, the child should be removed from the hostile environment and become a ward of the state, preferably adopted by a couple who have ordered their priorities correctly. The parents should have their earnings garnished to support the early development of their child.

It is dissociation of risk which causes corruption. It is dreams of instant (or immediate) material, physical, and ego gratification which motivates its progress.

There is no mystery. A human life develops from conception to death. The former which may be qualified as biological or conscious. Our national charter recognizes our unalienable right (endowed by our Creator) to Life from creation.

Perhaps this is why there is an effort to sabotage this nation, through fiscal profligacy and generational genocide. The character of this nation is irreconcilable with men and women who dream of material, physical, and ego instant (or immediate) gratification.

Elective abortion is the unjustified, premeditated murder of a human life during its early development. When it has no Arms to prevent and no voice to protest its torture and premature termination.

Women have the unique responsibility of caring for a human life, at its most vulnerable, from conception to birth. The father has the unique responsibility of caring for the mother and their unborn child.

If the mother or father forsakes responsibility for the care of their child, then she or he should not be eligible for entitlements or welfare from the state.

Don't get me wrong, n.n., I'm an illegal after the first trimester guy. Frankly, I think the genie is out of the bottle on abortion and it will never be made wholly illegal, but I can certainly see much stronger restrictions on it than we currently have.

My point is that, under the current legal regime, if a woman can flutter back and forth between wanting and not wanting, the man should be given as much consideration along the same lines as possible.

I agree with what someone said upthread. If the prevailing wisdom was that a man would not be bound by the simple fact of a pregnancy (assuming it's provably his), young women might undergo a bit of a sea change in their attitudes toward bumping uglies.

I was not criticizing you. I only intended to expand on the principle you were describing: risk moderates behavior. This is why I state, repeatedly, dissociation of risk causes corruption. Some people are under the impression that the cases of corruption are constrained to material wealth (e.g. money). They are wrong.

Thank you for your thoughtful comment. I had hoped that it might be incorporated into the subsequent discussion. But since it has not, I just wanted to return long enough to let you know that I appreciated it.

P.S.: Justice Blackmun opining on the stigma of unwed motherhood is sadly amusing in hingsight in light of the social forces put in play in part by this decision.

I'm very puzzled, Prof. Althouse, as to why are you perpetuating the myth that viability is the legal standard.

I know you also know about Doe v. Bolton, 410 U.S. 179 (1973), Roe v. Wade's companion case decided the same day, which held that a single physician's opinion about the mother's emotional and psychological well-being was all the legal justification necessary to kill a viable fetus. "The mother will be sad if we don't kill the fetus" is constitutionally all that's needed, per Justice Blackman and six other then-Justices, and woe to the State of Georgia for wanting two docs to agree that "continuation of the pregnancy would endanger the life of the pregnant woman or would seriously and permanently injure her health," or that the "fetus would very likely be born with a grave, permanent, and irremediable mental or physical defect," or that the "pregnancy resulted from forcible or statutory rape," because Georgia could not even condition the availability of abortion for viable fetuses on those factors.

Surely you teach both cases together with Casey in class, no? So why this misdirection about viability?

(a) To protect the central right recognized by Roe v. Wade while at the same time accommodating the State's profound interest in potential life, we will employ the undue burden analysis as explained in this opinion. An undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is to place a substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.

(b) We reject the rigid trimester framework of Roe v. Wade. To promote the State's profound interest in potential life, throughout pregnancy the State may take measures to ensure that the woman's choice is informed, and measures designed to advance this interest will not be invalidated as long as their purpose is to persuade the woman to choose childbirth over abortion. These measures must not be an undue burden on the right.

(c) As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion. Unnecessary health regulations that have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion impose an undue burden on the right.

(d) Our adoption of the undue burden analysis does not disturb the central holding of Roe v. Wade, and we reaffirm that holding. Regardless of whether exceptions are made for particular circumstances, a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.

(e) We also reaffirm Roe's holding that "subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother." Roe v. Wade, 410 U. S., at 164-165.

------------

The problem is, of course, that the loophole at the end is the exception that swallows the rule. If "mental health" is the only health showing that need be made, all that's needed is someone sympathetic with an MD.

To their credit, many physicians who do elective abortions on pre-viable fetuses won't do them on viable fetuses, but some, famously (or infamously) will, and do.